Sunday, June 1, 2014

"Your chance of winning a
protest may be better than you think, but that depends on how you define
winning.

Last year, the Government
Accountability Office decided only 3.43 percent of its protests cases in favor
of the protester, but that is only part of the story.

In a large number of protests, the
procuring agency took voluntary corrective action granting some form of relief
to the protester, thereby preempting GAO from rendering a protest decision.
When adding these cases to those GAO decided in favor of the protester, the
effectiveness rate for protests soars to 43 percent. In this article, we will
take a closer look at what this means for bidders
and what they might expect from protests.

Protest sustainment rate

In GAO’s 2013 annual report
to Congress on bid protests, GAO reported that it sustained
bidder protests for 87 protest cases out of 2,538 cases it closed that year.
This is a protest win rate of 3.43 percent for all protest cases closed. Of the
2,538 cases closed, 259 cases, or about 10 percent, were attributable to GAO’s
bid protest jurisdiction over task orders or delivery orders placed under
indefinite-delivery/indefinite-quantity (IDIQ) contracts.

The most prevalent reasons for
sustaining protests in 2013 were:

•Failure of the procuring agency to follow the solicitation
evaluation criteria.

•Inadequate documentation of the record.

•Unequal treatmentof
offerors.

•Unreasonable price or cost evaluation.

•Voluntary corrective actions

In over 1,000 bid protest cases last
year, the procuring agencies voluntarily took corrective actions granting some
form of relief to the protester rather than defend the protest on the merits of
the case. Corrective action
can occur at any time during a protest.

An agency’s corrective action may
involve a re-evaluation of proposals, a new award decision, an amendment to a
solicitation, or other actions. Typically, GAO dismisses a protest if an agency
takes corrective action that resolves
protest arguments or provides the relief sought by the protester.

If you filed a protest in 2013, you
had a 39.5 percent chance that the procuring agency would take voluntary
corrective action that would result in some form of relief for the protester.
When the number of cases where the agency voluntarily took corrective action is
added to the number of cases decided in favor of the protester, the
effectiveness rate for protesters rises to 43 percent.

Protest effectiveness rate

The protest effectiveness rate
(protests sustained plus voluntary corrective actions divided by total of all
protest cases closed) has been pretty constant over the past five years,
ranging from a low of 42 percent to a high of 45 percent.

Similarly, the sustainment
rate for protests (protests sustained divided by total number of protests
sustained and denied) has largely held constant, ranging from a low of 16
percent to a high of 19 percent.

While these rates have remained
fairly constant, the number of protests brought each year has generally
increased. From 2009 to 2013, the number of protests filed increased from 1,989
to 2,429 or an increase of about 22 percent. The number of protests filed each
year from 2009 increased every year with the exception of 2013, when the number
of protests declined from 2012 by about 2 percent.

This decline is presumably due to
reduced government spending
and reduced number of procurement actions in 2013.

Not all protests go the distance.
Only about 20 percent of GAO protests are actually decided on the merit of the
protest, so there is a 4 out of 5 chance that the protest will be dismissed by
GAO because the protest had a technical or procedural flaw (such as lack of
timeliness or jurisdiction), the agency took corrective action
that addressed the protest, or the protester withdrew the protest because it
decided it could not win.

Your best protest outcomes

If you are planning to protest,
probably the best outcome would be for the agency to voluntarily take
corrective action quickly so GAO could dismiss the protest early in the process,
saving you some legal expenses. Your chance of this happening is around 40
percent.

If the protest goes the distance,
your chance of winning drops to less than 20 percent.

So if the agency doesn’t voluntarily
take corrective action, you might want to consider pulling the plug on your
protest and saving the little bit of money you have left to bid other jobs
where you have a better chance of winning."